Exemplars

The Fifth Amendment provides that ‘‘no person . . . shall be compelled in any criminal case to be a witness against himself.’’ This restriction on government power, commonly known as the privilege against self-incrimination, is designed to protect individual autonomy by forcing the government to obtain evidence against a defendant through its own labors, rather than by ‘‘the cruel, simple expedient of compelling it from his own mouth.’’

The classic example of the privilege against selfincrimination is the right to remain silent when questioned by government officials, established in the seminal case Miranda v. Arizona (1966). Questions about the scope of the privilege also commonly arise, however, when the prosecution attempts to compel a defendant to produce a sample of his handwriting, fingerprints, or similar kind of physical evidence. Such examples are collectively known as exemplars.

With few exceptions, courts have rejected claims that the compelled production of exemplars violates the privilege against self-incrimination. The privilege extends only to ‘‘testimonial’’ evidence—evidence that in some sense discloses the contents of the defendant’s mind—and the Supreme Court has consistently held that exemplars are not testimonial. The classic case in this regard is Schmerber v. California (1966), where the Court noted that the incriminating potential of a blood test results from chemical analysis, not from any testimony or otherwise communicative act on the part of the defendant.

Courts have permitted the compelled production of a wide variety of exemplars on the ground that they were nontestimonial and thus not protected by the privilege against self-incrimination, including examples of the defendant’s blood, fingerprints, footprints, DNA, handwriting, voice, urine, and breath.

Courts have also held that compelling a defendant to exhibit his body to an eyewitness in a manner that promotes identification is nontestimonial. Thus, defendants have been required to shave their beards and have their hair trimmed, reveal their teeth and tattoos, wear clothes and masks allegedly worn by the perpetrator, and re-enact the physical actions involved in a crime.

In addition to privilege challenges, defendants have also argued that the compelled production of exemplars violates the Fifth Amendment’s guarantee of due process and the Fourth Amendment’s right to be free from unreasonable searches and seizures. Fourth Amendment challenges involving external physical features such as voice or hair regularly fail, on the ground that defendants have no reasonable expectation of privacy in those characteristics, because they are normally exposed to others in everyday life. Courts have held, however, that probable cause is required to compel the production of more physically intrusive exemplars such as blood or x-rays.

Due process challenges, although generally rejected, have occasionally succeeded when a voice exemplar or crime re-enaction was so suggestive of the defendant’s guilt that it effectively undermined the defendant’s presumption of innocence. It is impermissible, for example, to require a defendant to ‘‘put on a ski mask, wave a toy gun, and shout ‘give me your money or I’m going to blow you up.’’’

KEVIN JON HELLER

References and Further Reading

• Connor, Michael A., The Constitutional Framework Limiting Compelled Voice Exemplars: Exploration of the Current Constitutional Boundaries of Governmental Power over a Criminal Defendant, San Diego Law Review 33 (1996): 1:349–83.
•  Levy, Leonard W. Origins of the Fifth Amendment: The Right Against Self-Incrimination. New York: Oxford University Press, 1968.
• United States v. Olvera, 30 F.3d 1195 (1994).

Cases and Statutes Cited

• Miranda v. Arizona, 384 U.S. 436 (1966)
• Schmerber v. California, 384 U.S. 757 (1966)

See also Due Process; Miranda v. Arizona, 384 U.S. 436 (1966); Schmerber v. California, 384 U.S. 757 (1966)